350
Scalia, J., dissenting
holding that refusal to entertain a petition can be reversible error.
Rather than advancing a different reading of the statute, the Court gives in essence only one response to all of this: that the law of federal habeas corpus is a product of "the interplay between statutory language and judicially managed equitable considerations." Ante, at 319, n. 35. This sort of vague talk might mean one of two things, the first inadequate, the second unconstitutional. It might mean that the habeas corpus statute is riddled with gaps and ambiguities that we have traditionally filled or clarified by a process of statutory interpretation that shades easily into a sort of federal common law. See, e. g., Brecht v. Abrahamson, 507 U. S. 619, 633 (1993). That is true enough. There assuredly are, however, many legal questions on which the habeas corpus statute is neither silent nor ambiguous; and unless the question in this case is one on which the statute is silent or ambiguous (in which event the Court should explain why that is so), the response is irrelevant. On the other hand, the Court's response might mean something altogether different and more alarming: that even where the habeas statute does speak clearly to the question at hand, it is but one "consideratio[n]," ante, at 319, n. 35, relevant to resolution of that question. Given that federal courts have no inherent power to issue the writ, Ex parte Bollman, 4 Cranch 75, 94-95 (1807), that response would be unconstitutional. See U. S. Const., Art. VI, cl. 2.
There is thus no route of escape from the Court's duty to
confront the statute today. I would say, as the statute does, that habeas courts need not entertain successive or abusive petitions. The courts whose decisions we review declined to entertain the petition, and I find no abuse of discretion in the record. (I agree with The Chief Justice that they were correct to use Sawyer v. Whitley, supra, as the legal standard for determining claims of actual innocence. See
Page: Index Previous 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 NextLast modified: October 4, 2007